(2026:JHHC:2959) 1 Cr. M.P. No.699 of 2023 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.699 of 2023 ------ Gaurav Agrawal @ Mantu Agrawal @ Gaurav Kumar, aged about 32 years, son of Dilip Kumar Agrawal, resident of Flat No.304-A, Gokul Dham Apartment, Morabadi, Near ICICI Bank, Morabadi, P.O. and P.S. Bariatu, District Ranchi … Petitioner Versus 1. The State of Jharkhand 2. Omprakash Yadav son of Ramjee Prasad Yadav, aged about 38 years, resident of village Davankara, P.O. and P.S. Manjhiaon, District Garhwa … Opposite Parties ------ For the Petitioner : Mr. Amit Kr. Sinha, Advocate Ms. Saman Ahmad, Advocate For the State : Mr. Shailendra Kr. Tiwari, Spl. P.P. For the O.P. No.2 : Mr. Sabyasanchi, Advocate ------ P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties. 2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, 1973 with the prayer to quash the entire criminal proceeding initiated by way of Complaint Case No.476 of 2018 along with the order dated 07.08.2018 by which cognizance has been taken by the learned Judicial Magistrate-1st Class, Garhwa against the petitioner for having committed the offence punishable under Section 138 of the Negotiable Instruments Act. (2026:JHHC:2959) 2 Cr. M.P. No.699 of 2023 3. The brief fact of the case is that the petitioner is alleged to have issued a cheque for Rs.2,70,000/- to the complainant. The said cheque was deposited by the complainant in his bank and the same was dishonoured on 30.01.2018. The complainant issued a notice demanding the payment of the amount mentioned in the cheque to the petitioner. There is neither any material or any averment that the notice was ever served upon the petitioner. The complaint was filed on 14.03.2018. 4. Learned counsel for the petitioner relies upon the judgment of the Hon’ble Supreme Court of India in the case of C. C. Alavi Haji vs. Palapetty Muhammed & Another reported in (2007) 6 SCC 555 wherein in paragraph-15, the Hon’ble Supreme Court of India has emphasized that the complaint involving the offence punishable under section 138 of the Negotiable Instruments Act, must contain basic facts regarding the mode and manner of the issuance of notice to the drawer of the cheque and at the time of taking cognizance of the complaint under Section 138 of the Act, the court is required to be prima facie satisfied that a case under the said section is made out and the mandatory statutory procedural requirements have been complied with. 5. Learned counsel for the petitioner further relies upon the judgment of the Hon’ble Supreme Court of India in the case of Yogendra Pratap Singh vs. Savitri Pandey & Another reported in (2014) 10 SCC 713 and submits that therein the Hon’ble Supreme Court of India has held that a conjoint reading of Section 138 of the N.I. Act (2026:JHHC:2959) 3 Cr. M.P. No.699 of 2023 read with Section 142 (b) of the N.I. Act; the accused of an offence punishable under Section 138 of N.I. Act cannot said to have committed the offence unless and until the period of 15 days, as prescribed under clause (c) of the proviso to Section 138 of N.I. Act, has, in fact, elapsed and before that the court is barred in law from taking cognizance of such complaint. 6. Learned counsel for the petitioner next relies upon the judgment of the Hon’ble Supreme Court of India in the case of Subodh S. Salaskar vs. Jayprakash M. Shah & Another reported in (2008) 13 SCC 689 and submits that therein the Hon’ble Supreme Court of India has held that if the presumption of service of notice within a reasonable time is raised, it should be deemed to have been served at best within a period of thirty days from the date of issuance of thereof. So, the accused was required to make payment in terms of the said notice within fifteen days thereafter. So, the complaint before forty-five (45) days of the issue of the notice is premature. 7. It is next submitted that as it is not even the case of the complainant that the notice demanding payment of the cheque amount was ever served upon the petitioner, so at best a presumption of culpability of the petitioner could have been drawn after expiry of forty-five (45) days from the date of issue of the notice i.e., on 21.03.2018 keeping in view that February, 2018 was of 28 days. but in view of the principle of law settled by the Hon’ble Supreme Court of India in the case of Yogendra Pratap Singh vs. Savitri Pandey & Another (supra), (2026:JHHC:2959) 4 Cr. M.P. No.699 of 2023 before 21.03.2018 (keeping in view that February, 2018 was of 28 days), the petitioner could not have been said to have committed the offence punishable under Section 138 of the N.I. Act but since the complaint has been filed on 14.03.2018, hence, the same is premature, therefore, the cognizance is bad in law. Hence, it is submitted that the prayer, as prayed for in the instant Cr.M.P., be allowed. 8. Learned Spl. P. P. appearing for the State and the learned counsel for the opposite party No.2 on the other hand vehemently oppose the prayer of the petitioner made in the instant Cr.M.P. but the learned counsel for the opposite party No.2 fairly submits that there is no material in the record to suggest that on which date the notice demanding payment of the cheque amount, was served upon the petitioner but it is submitted that by the time of taking cognizance, the period of forty-five (45) days was over so, on the date of taking cognizance the petitioner had committed the offence punishable under Section 138 of the N.I. Act. Hence, it is submitted that this Cr.M.P., being without any merit, be dismissed. 9. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that the undisputed fact is that the notice demanding the cheque amount mentioned in the cheque was issued on 05.02.2018, the complaint should have been filed after expiry of fifteen (15) days from the date of receipt of such notice by the petitioner or in case there is no material to suggest that the notice was ever received by (2026:JHHC:2959) 5 Cr. M.P. No.699 of 2023 the petitioner, this complaint could have been filed forty-five (45) days from the date of issue of the notice; as before that the offence punishable under section 138 of the Negotiable Instrument Act, was not complete. 10. Now, in this case, the undisputed fact remains that there is no material in the record to suggest that the notice dated 05.02.2018 demanding the payment of the cheque amount was ever received by the petitioner. So, the month of February, 2018 having 28 days only, the complaint could have been filed on 21.03.2018 because by that time only, the petitioner could have been said to have committed the offence punishable under Section 138 of the N.I. Act but admittedly the complaint having been filed prior to that this Court has no hesitation in holding that the complaint is a premature one. Hence, the entire criminal proceeding initiated by way of Complaint Case No.476 of 2018 along with the order dated 07.08.2018 by which cognizance has been taken by the learned Judicial Magistrate-1st Class, Garhwa, having been taken on a prematurely filed complaint, is not sustainable in law. 11. Hence, the entire criminal proceeding initiated by way of Complaint Case No.476 of 2018 along with the order dated 07.08.2018 by which cognizance has been taken by the learned Judicial Magistrate- 1st Class, Garhwa, is quashed. 12. In the result, this Criminal Miscellaneous Petition is allowed. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 04th of February, 2026 AFR/ Animesh Uploaded on- 10/02/2026